This post argues that the exercise of the prerogative without Parliamentary consent – as the Government appears increasingly set to do – runs the risk of triggering a full-blown constitutional crisis. This makes it imperative, both as a matter of constitutional law and established constitutional practice, that parliamentary consent is obtained before the process is invoked.

We believe that this argument has a firmer constitutional footing, and this post seeks to develop it further. The heart of our argument lies in Section 2(1) of the European Union Act 2011. The 2011 Act created a new mechanism for changes to the relationship between the EU and the UK. Although on a literal reading the 2011 Act neither mentions Article 50 (unlike several articles with which it does deal) nor deals with withdrawal (as distinct from ‘amendment’ or ‘replacement’ stricto sensu), we argue that the consequence of a literal reading would be so extraordinary that on ordinary principles of statutory interpretation as well as constitutional principle, the statute must be read as mandating a role for Parliament in addition to whatever role the electorate and the Government might play.

Statute and the prerogative

Traditionally, the power to conduct diplomatic affairs and to make treaties with other nations falls to the Crown under the Royal prerogative. The prerogative is, however, limited in a range of ways, three of which are directly pertinent to the question before us.

It is limited by the principle in Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, under which if Parliament has conferred powers on the executive to undertake a certain act, then that act can only be done under statutory powers even if it was earlier covered by the prerogative: the creation of the statutory power places the prerogative in abeyance.

It is limited by the principle in ex parte Fire Brigades Union [1995] 2 AC 513, under which it cannot be used to frustrate the will of Parliament or (and for our purposes, critically) pre-empt parliamentary decisions: doing so would be an abuse of power.

It is limited by the principle in Laker Airway v Department of Trade [1977] QB 643, which held that the prerogative power and municipal law are “inextricably interwoven” even where statute does not directly abrogate or curb the prerogative: prerogative powers cannot be exercised to take away rights of citizens recognised by statute, or be exercised to undermine the aims of a statute.

A common concern underlies these three restrictions: the importance of ensuring that the government cannot circumvent controls imposed by statute. Any attempt to interpret the legislation governing the UK’s relations with the EU should be read in the light of this traditionally restrictive view of the courts of the limits of prerogative in relation to legislation.

The European Union Act 2011

With this background let us turn to Section 2(1) of the European Union Act 2011. In constitutional terms, this section forms the bedrock of the mechanism for ratifying changes in the UK’s relationship with the European Union, and at the Bill’s Second Reading it was expressly conceded that it would affect the prerogative. The mechanism it envisages is one of dual consent. The consent of the electorate through a referendum is sometimes necessary, but never sufficient. The 2011 Act does not make referendum results automatically binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011). Parliament is, of course, unlikely to ignore the will of the electorate, but it might (and arguably should) use its powers to impose conditions and safeguards, procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with. The European Union Referendum Act 2015 does not alter this system of dual consent.

The 2011 Act does not deal with Article 50 directly. Section 2’s concern is with amending or replacing treaties. The bare invocation of Article 50 does neither. Further, the 2011 Act lists a number of provisions in the Treaty of Lisbon—so-called pasarelle and accelerator clauses—which require approval by Act of Parliament and referendum (as in Section 6), or by Act of Parliament alone (Section 7). Article 50 is not amongst them.

The statute does not therefore directly place in abeyance the ability to invoke Article 50 through the prerogative. But statutes need not always be read literally—and in some circumstances, they must not be so read. As we will now argue the present situation is one where a literal reading should be avoided. To do otherwise would be to allow the use of the prerogative to bring about consequences that are deeply problematic, and run counter to the purposes of the 2011 Act.

Invoking Article 50 by prerogative: A recipe for constitutional crisis

Article 50 is framed in unambiguous terms. It contemplates a negotiation culminating in a new agreement setting out the terms on which withdrawal will take place. The 2011 Act does not define ‘replace’ (unlike ‘amend’), but such a future treaty would clearly “replace” TEU and TFEU as far as the UK is concerned. The dictionary definition of “replace” is “to provide a substitute for; to put an equivalent in place of” (OED 3rd edition 2009). That would be precisely what the new treaty did. As Sir David Edward, a former judge of the CJEU, pointed out, any withdrawal would also require an amendment to the existing treaties as far as the remaining 27 states are concerned.

That applies once negotiations are concluded. But what would happen if Parliament were to reject the deal that was reached – for example, because it contravenes key planks of the Leave campaign, or because it involved a net loss of sovereignty? This is not fanciful: preliminary statements from the EU on the four freedoms suggest that the UK may have to choose between continuing to permit European migration and losing access to the common market. Equally, it is far from unimaginable that the ultimate outcome of Article 50 negotiations would be akin to EEA membership – involving the retention of obligations similar to those currently imposed on the UK, but with the loss of the ability to object to them.

The purpose of the 2011 Act is to ensure that such far-reaching changes cannot be made by ministers without parliamentary assent. But the consequences of rejection under Article 50 would mean that Parliament, in practice, had little option but to assent. Article 50’s language is unambiguous: the state automatically ceases to be a member two years after notification, agreement or no agreement. Sir David Edward suggests that it would be possible for a change of heart, but he did not think that this could happen without adverse consequences:

It does not seem to me that you can necessarily say, “Right; I have put you to all this trouble; we have negotiated for two years and now I do not actually like the terms you are offering so I want to go back to zero”. My hunch is that many of them might say, “Right, back to zero. No more opt-outs”.

Parliament could therefore, potentially, be compelled to accept whatever agreement it was given, with no real option but to ratify, simply because (unlike in most other treaty amendments) the strict legal alternative to ratification would not be the maintenance of the status quo. It would be a bare, chaotic withdrawal. And any attempt to seek to preserve the status quo, if Sir David’s “hunch” is correct, might only lead to even further integration.

Such a result – where Parliament’s power to refuse to ratify is so heavily constrained – would be so extraordinary, and so utterly contrary to the purpose of the 2011 Act, that it cannot have been intended by Parliament. If the policy behind the 2011 Act was, as the then Foreign Secretary, William Hague stated in the passage of the legislation, to effect, “a fundamental shift in power from Ministers of the Crown to Parliament and the voters themselves on the most important decisions of all: who gets to decide what” on questions of European integration, then an executive action which risked precisely the opposite outcome would a fortiori be unconstitutional. The statute must, therefore, in keeping with the Laker principle and the canons of interpretation, be taken to have implicitly restricted the ability of the Government to rely solely on the prerogative in initiating the Article 50 process.

Precautionary consent and the prerogative

One further point can be made. Even if the argument we have articulated above is not irrefutable, we believe it rests on a clearly arguable footing. It should, at the least, demonstrate that it is far from unambiguous that the Government retains the power to invoke Article 50 by prerogative.

That the 2011 Act might create such issues was not unforeseen. In parliamentary debate over what became the 2011 Act, then Shadow Foreign Secretary, Yvette Cooper said:

The Bill will create a lawyers’ paradise because it is so confused and complex. Important issues will have to be decided by the courts as they try to interpret what the Government and Parliament meant, which could lead to decisions that override Parliament and delays to decisions that Parliament might want to make while those legal wrangles are taking place.

Parliament has the competence—and we would argue the responsibility—to put the matter beyond doubt and to end the current constitutional crisis. It could do this either by explicitly including Article 50 within the dual consent scheme of the 2011 Act, or else by explicitly making it an exception.

It has long been accepted constitutional practice to secure parliamentary consent for matters where there was genuine doubt, even if slight, about the scope of the prerogative. The clearest precedent is the transfer of Heligoland to Germany, where parliamentary consent was expressly sought, despite a very strong view that ceding territory fell within the prerogative. Doubts remained as to whether the Crown could validly cede territory in peacetime, and absent public emergency, because of its potential impact on the rights of subjects. To deal with those doubts, the treaty was expressly made subject to parliamentary consent (Article 12(1)), which was obtained through the Heligoland Act 1890. This precedent continued to be followed when independence was granted to conquered colonies. This sound constitutional practice, motivated by the desire to avoid the constitutional crises that might otherwise result, commends itself for adoption in relation to Article 50.

Like this:

Related

None of the serious contributors to this debate have responded to the point I keep making to them. A statement of intent is what it says. It is directly comparable to the Queen’s Speech. It does not override, or render nugatory any existing legislation. It does not conflict with any legislation. It is solely a manifestation of an intent, which either exists or does not exist.

Parliament has its role in relation to consequent legislation, which it may decline to enact, for example by rejecting the repeal or amendment of the 1972 Act. Parliament may frustrate the Government’s intention, as it sometimes does. The government may have to change its mind. The consequences may be unpalatable or undesirable for some or even for all, participants. That does not iprecipitate a constitutional crisis. It is not uncommon for the actions of governments to have consequences that many people dislike.

I would very much appreciate at least one of the contributors addressing this specific point.

The difficulty, as we point out in this post, is that Article 50 says that the UK leaves two years after it issues the notification. Parliament can’t do anything to stop that. It doesn’t matter whether it refuses to repeal the 1972 Act. The UK is out when two years are up. Parliament can’t stop that process.

On the broader point about the effect of a statement of intent: it is far from clear that the UK can change its mind once it has issued an Article 50 notification. The Vienna Convention on the Law of Treaties says that notifications of withdrawal from a treaty can be revoked up to a point of time, but the wording is unclear on whether that point of time is when the notification is received by the other parties to the treaty or when the withdrawal process is complete. The commentaries I’ve read tend to lean ever so slightly in favour of the former view – if that is right, then the government cannot change its mind about withdrawal unless the other 27 countries permit it to do. That takes us straight back to the point Sir David makes, that it will not be possible to return to the status quo.

I have been following the debate over Article 50 notification with interest. My primary concern is the protection of my families EU citizenship. Both my partner and I are British Nationals, born in England post 1974. Our children age 3 and 6 are British Nationals born in England. We reside in England. We consider ourselves European nationals and are EU citizens. We consider that our children’s EU citizenship is their birthright. The debate over Article 50 has not explored the matter of how, or even if, British Nationals could be stripped of their existing EU citizenship. Article 20 (1) TFEU is silent as to stripping of EU citizenship as is Article 50. Whilst Article 50 provides for the removal of a Member State from the EU, it does not provide for the removal of EU citizenship from existing EU citizens. I would observe that a significant proportion (48%) of the population hold a great affinity for the EU that could be described as a sense of European patriotism. It seems to me that whilst it might be possible to take England and Wales out of the EU, that does not mean it is also possible to take EU citizenship out of the UK population, especially the 48%. I understand that the UK’s contribution to the EU equates to approximately 28p per person per day. Roughly £104 per year. For some that would be an attractive annual EU tax to pay in return for continued EU citizenship post BREXIT. As EU citizens the right to free movement and to appoint an MEP could be facilitated. There is scope to have dual-citizenship in post BREXIT England, if not dual-nationality as European and British. As a constitutional matter, who decides on the matter of stripping existing EU citizens of their EU citizenship as part of BREXIT? Is it the EU or the UK?

The bigger constitutional practicalities seem to me to not be the finer technicalities of Article 50, but the broader position around the issue that whilst BREXIT might take some of the UK out of the EU, that does not mean it will take the EU out of 48% of the population.

Interesting point on the rights we have as European citizens under the TFEU. Irrespective of whether HMG can normally exercise a power such as art.50 under the Prerogative, can it do so in order to restrict individuals’ rights without Parliamentary authority?

Neither if which. I am afraid. I think crosses the arguable threshold (ie would you stand up in court and argue it as a barrister, despite thinking it wrong).

Others may take a different view of course.

André Clodong

July 1, 2016

As a layman, I will tread carefully. The referendum was quite unnecessary yet became a quagmire. On the bright side, it has compelled everyone to take a deep look at what is wrong with the EU. This referendum, plain and simple, is unworthy of the great British democratic tradition. Therefore, the Parliament where more informed minds are expected, must have a say. The main obstacle I see in finding a way out is the average poor quality of some of the politicians who have a stronghold over the Commission. Should the UK never activate Article 50, the EU would anyhow be compelled to reform. Far from being a destructor of the value of the EU, the UK thus would, unwillingly, become a builder of a better European construction.

All interesting stuff. The only basis open to the legislature for authorising the executive to invoke art. 50 would therefore appear to be that of being prepared, should it come to that, of exiting the EU on the worst case scenario of there being no negotiated and agreed terms for the UKs future relationship with the 27 member states. Art. 50 would seem to be designed to force any member state wishing to leave to take a leap in the dark, (pour decourager les autres) and the EU clearly intends to apply that to the UK now. Why was that not explained to the population in the clearest terms before the date of the referendum?

I think this is an interesting argument but flawed as it fails to consider the EU referendum act 2015. This clearly states the referendum is to decide whether we remain in or leave. This delegates Parliments power to the popular vote, it may not be what was intended by passing this Act but it is the only logical conclusion from the wording. By passing this Act not only have Parliment “considered” the position but they have voted by a majority to replace previous legislation with this. Unless there is a time frame embedded within the Act it has force from its passing (or in this case from the time the result was known), therefore by not triggering artical 50 the PM is acting unconstitutional.

Peter, we do consider the EU referendum Act 2015 – and not that unlike the legislation for the referendum it is advisory only. This is not that Parliament should consider itself necessarily free to disregard the expression of popular will, but legally, I don’t think you could say there is any ‘delegation’ (as distinct from ‘consultation’. Therefore the 2015 I think leaves the scheme of dual consent established by the EUA 2011 intact. There is certainly no explicit repeal of the 2011 Act. There may be implied repeal, but I think the two Acts can be read consistently with one another.

To supplement what Lindsay said: When Parliament has wanted to delegate decision-making to a popular vote in the past, it has expressly said so. For an example, see Section 8 of the Parliamentary Voting System and Constituencies Act 2011 (linked to in our post above). The EU Referendum Act 2015 says no such thing.

I think my reply got a bit garbled – no doubt my fault. The first ‘not’ should read ‘note’ and the second ‘referendum’ should read ‘AV referendum’. Apologies.

André Clodong

July 3, 2016

A referendum is always a blunt instrument. A 52 percent majority against a 48 percent minority is bound to be divisive. In Belgium – a complicated State indeed – any change to the Constitution requires a two-third majority in the Chamber of Representatives. Adhesion to or exit from the EU is clearly in the magnitude to changes in a Constitution. Perhaps the UK could take a leaf from Belgium.

Now that the cat is firmly out the bag, that is the Prime Minister never thought he would lose the contest, there is an opportunity for the UK to lead a pan-European campaign for the reform of the EU. The demand is there and the Brits are natural communicators in the most common European language. The current EU executive is clearly not the one to deliver the required lofty prose. The UK would quickly no longer be the black sheep in the EU family, but be the saviour of this great enterprise which the EU has always been. Fortunately, the UK is not alone in being unhappy with the recent evolution of the EU toward ever more bureaucracy and the absence of inspirational goals.

You argue “Parliament has the competence—and we would argue the responsibility—to put the matter beyond doubt and to end the current constitutional crisis. It could do this either by explicitly including Article 50 within the dual consent scheme of the 2011 Act, or else by explicitly making it an exception.”

I’ve already addressed this in a comment on Nick Barber, Tom Hickman and Jeff King original post, which stated in part:

“[S]chedule 1, part 1 of the European Union Act 2011 does appear to list “Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU)” as one of the”Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum”. (See sections 4 and 6 of the 2011 Act).

“http://www.legislation.gov.uk/ukpga/2011/12/schedule/1

“The omission from the schedule of Articles 50(1) and 50(2) is consistent with the statement in paragraph 5 of the explanatory notes (which “do not form part of the Act and have not been endorsed by Parliament”) thart Part 1 of the 2011 Act makes provision for decisions “if these would transfer power or competence from the UK to the EU”.

“Articles 50(1) and 50(2) appear to be about removing power of competence from the EU by withdrawal and ending of current treaty obligations. Only at the stage of Article 50(3) would power or competence appear to be transferred to the EU, and then only on the “entry into force of the withdrawal agreement”, if such an agreement is negotiated, and membership of the EU has not automatically ended after two years without agreement.”

You state:

“The 2011 Act does not make referendum results automatically binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011).”

Didn’t he the Parliamentary Voting System and Constituencies Act 2011 have it’s origins in policies of the minority party in the Coalition, whereas the European Union Referendum Act 2015 had its origins in the manifesto makes it commitment of what became a majority Government and doesn’t this alter the implicit inference that you draw that the omission of an implementing provision in the 2015 Act makes it advisory.

The Government has consistently aid, in Parliament and outside, the referendum would be a “decision”. Doesn’t this aid statutory interpretation?

I think the reason that the schedule to the European Union Act 2011 includes article 50(3) of the Lisbon treaty but not articles 50(1) and 50(2) is that withdrawal can be automatic under Article 50(3) after two years; so the domestic duties in the 2011 Act would not then be engaged by a new or replacement EU treaty or decision.

This would be consistent with the interpretation the pupose of the 2011 Act is to provide domestic controls on the transference of new competencies to the EU and not to provide for domestic controls on the total withdrawal of competencies.

If this interpretation is correct, then it is possible the Courts will find in the Brexit litigation that application of the declaratory provision in Section 18 of the 2011 Act (“Status of EU law dependent on continuing statutory basis”) is not necessary for judgment.

If it is necessary, this could strengthen the claimants’ argument.

It is also possible consideration of section 18 would reopen interesting arguments about the domestic rule of recognition of international legal obligations. After all, the domestic Courts might find it useful to strengthen international confidence in the UK’s recognition of international law at a time when the UK is embarking on negotiation of worldwide trade agreements.

“18 Status of EU law dependent on continuing statutory basis.

“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act. ”

Your non-literal reading of the 2011 Act does not appear to be supported – on a Pepper v Hart [1993] AC 593 reading – by the Hansard passage you cite that the scope of the bill includes withdrawal of competencies form the EU.

The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague) expressly stated the Bill’s was about “future treaty change that transfers powers from Britain to the EU” at second reading in the Commons: “We additionally agreed, in the coalition agreement, that we would not agree to any transfer of powers from Westminster to Brussels for the duration of this Parliament. In addition, if Parliament approves the Bill, any future treaty change that transfers powers from Britain to the EU could be agreed only subject to the consent of the British people. That will provide a referendum lock to which the British people hold the key. The Bill makes a very important and radical change to how decisions on the EU are made in this country. It is the most important change since we joined what was then called the European Economic Community. It marks a fundamental shift in power from Ministers of the Crown to Parliament and the voters themselves on the most important decisions of all: who gets to decide what.”
Hansard 07 December 2010, Volume 520, Column 191http://hansard.parliament.uk/Commons/2010-12-07/debates/10120737000002/EuropeanUnionBill#contribution-10120737000348

In addition your advocacy of a non-literal reading of the 2011 Act appears to conflict with the ratio decidendi of R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1993] EWHC Admin 4 per LJ Lloyd: “When Parliament wishes to fetter the Crown’s treaty making power in relation to Community law, it does so in express terms, such as one finds in section 6 the 1978 Act”.

The Divisional Court which decided Rees-Mogg did not have to apply Pepper v Hart because it found the statutory provision in question was not “ambiguous”.

This leaves the current Brexit litigation to reconcile, on any Pepper v Hart defence that the European Union Referendum Act 2015 provided for a statutory decision on the UK leaving the EU, the potential conflict between the ratio of Rees-Mogg (express words needed to “to fetter the Crown’s treaty making power”) and Pepper v Hart (words expressed in Parliament but not expressed in the Act can be used to “resolve the ambiguity” in the obiter comments in Rees-Mogg).

Application of a Pepper v Hart reading of the 2015 Act would find support in the obiter comments of LJ LLoyd in Rees-Mogg:” If there had been any ambiguity, which there is not, we would have regarded this as an appropriate case in which to resort to Hansard, in accordance with the principles stated in Pepper v Hart.”

The explanatory notes to Schedule1 to the 2011 Act state “a referendum is needed only before the UK can agree to any proposed treaty change or decision under Article 48(6) or 48(7) TEU which would remove the UK veto over agreeing proposals made under any of the Articles in Schedule 1. Actual use of these Articles will not require a referendum.”

The fact that Parliament has not provided for substantive controls on the use of Article 50 has been argued by the defence in the Brexit litigation in Belfast and is addressed in the defence’s skeleton argument for the London claims:

The passage from Rees-Mogg that I have cited above is relied on by the defence at paragraph 25 of their 30 September 2016 skeleton argument

(it’s not currently clear in the Divisional Court will require further skeletons on a Pepper v Hart reading of the 2015 Act which provided for the holding of the referendum):

‘In the absence of an express restriction on the Crown’s powers to take action under the EU Treaties, the Courts will not imply any such restriction. That was the decision of the Divisional Court in R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [1994] QB 552. In an argument which is closely analogous to that pursued in the present case, the claimant in Rees-Mogg submitted that the Government was not entitled to ratify the Protocol on Social Policy annexed to the Maastricht Treaty using prerogative powers because section 2(1) ECA would give the Protocol effect in domestic law, and only Parliament had the power to change domestic law. The argument was rejected for a number of reasons, the first of which was that neither the ECA nor any other statute was capable of imposing an implied restriction upon the Crown’s treaty-making power in relation to Community law. Lloyd LJ, giving the judgment of the Court,
stated:
‘ “We find ourselves unable to accept this far-reaching argument. When Parliament
wishes to fetter the Crown’s treaty-making power in relation to Community law, it
does so in express terms, such as one finds in section 6 of the Act of 1978. Indeed, as was pointed out, if the Crown’s treaty-making power were impliedly excluded by
section 2(1) of the Act of 1972, section 6 of the Act of 1978 would not have been
necessary. There is in any event insufficient ground to hold that Parliament has by
implication curtailed or fettered the Crown’s prerogative to alter or add to the E.E.C.
Treaty.” ‘

The defence skeleton does not appear to cite Pepper v Hart. It does cite Hansard materials both before and after the 2015 Act received Royal Assent.

Some of the skeleton arguments do not appear to be in the public domain. So I am currently unclear if any of the skeleton arguments have cited Pepper v Hart.

Parliamentary privilege is expressly mentioned at footnote 5 of the defence skeleton:

‘Mr Dos Santos also relies upon the recent report of the House of Lords Select Committee on the Constitution, The Invoking of Article 50 (HL Paper 44) as supporting his position with regard to the necessary role of Parliament (Skeleton Argument, §35(3)). The Secretary of State agrees with Mr Dos Santos that the doctrine of Parliamentary privilege prevents any reliance being placed upon the
Committee’s conclusions and would add only that those conclusions are not in fact in accordance with the position of the claimant parties in this case. They were to the effect that Parliament could and should give approval to the triggering of Article 50 by a resolution of each House, rather than that primary legislation is legally required.’https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/558592/Miller_v_SSExEU_-_Skeleton_Argument_of_the_Secretary_of_State_300916.pdf